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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 7047 (KLR)

Achieng v Odhong & another (Enviromental and Land Originating Summons E012 of 2024) [2024] KEELC 7047 (KLR)

Environment and Land Court
24 October 2024
EAE. Asati
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Kisumu Environment and Land Court froze all activity on disputed land, letting both sides stay put while it later decides the adverse possession claim at trial.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court seeking a temporary injunction restraining the Defendants from fencing, sub-dividing, building on, alienating or otherwise interfering with the suit lands, on the basis that he had been in possession for over 12 years since November 2005, while the Defendants only acquired title in 2023. The Plaintiff claimed the Defendants had resorted to violent and forceful entry and destruction of his developments. The 1st Defendant opposed, asserting he bought parcels 2138 and 1481, established his home on parcel 2137 belonging to the 2nd Defendant believing it to be 1481, and that the Plaintiff encroached in 2014 and built a permanent house on parcel 2137 despite objection. The 2nd Defendant filed grounds of opposition arguing the application was an abuse of process and that the Originating Summons was premature as 12 years had not elapsed since registration. Counsel for the Applicant relied on Joseph Kamau Gichuki v James Gatheru Mukora & Another (2019) eKLR on the running of time despite a registered owner's death. The court found that the 1st Defendant had already fenced off parcel 2138, and it was admitted the Applicant had a permanent house on parcel 2137. Holding that adverse possession was a matter for trial, the court preserved the status quo as to title, use and occupation of the suit land, restraining both parties from new fencing, survey, construction, sale, charging, letting or disposition pending determination of the suit, with no order as to costs.

Key legal issues

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01

Prima facie case for interlocutory injunction in a claim of adverse possession

Holding

The court did not make a definitive finding on adverse possession at the interlocutory stage; it found the existence of a permanent house on parcel 2137 and the 1st Defendant's fencing of parcel 2138, and held that adverse possession should be decided at the hearing

Reasoning

The court considered the rival affidavits and submissions. It noted that the 1st Defendant had already fenced off and taken possession of parcel 2138, and it was admitted that the Applicant has a permanent house on parcel 2137. Since adverse possession turns on evidence, the court declined to determine the question finally and instead preserved the status quo of title, use and occupation pending trial.

p. 3
02

Preservation of the suit property pending trial

Holding

The status quo as to title, use and occupation of the suit land as at the date of the ruling must be maintained, with parties restrained from new fencing, survey, construction, sale, charging, letting or disposition

Reasoning

Given the contested claims of occupation and the risk of violent and forceful entry and destruction of developments, the court found it necessary to preserve the status quo rather than grant the wide-ranging injunction sought. Both parties are bound by the restraint pending the hearing and determination of the suit.

p. 3

Legal principles established

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  • Where adverse possession is contested, it is a matter to be determined at the hearing of the suit, and pending determination the court may preserve the status quo of the suit land

Court orders

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  1. 1.The status quo obtaining in respect of the title, use and occupation of the suit land as at the date of the ruling be maintained and respected by both parties pending hearing and determination of the suit
  2. 2.The parties are restrained from further or new fencing, survey, construction, selling, charging, letting or in any manner disposing of the suit land pending hearing and determination of the suit
  3. 3.No order as to costs
Jurisdiction invoked
Not stated in the judgment; the court exercised its inherent interlocutory jurisdiction to preserve the status quo of suit land pending hearing

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Achieng v Odhong & another (Enviromental and Land Originating Summons E012 of 2024) [2024] KEELC 7047 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7047/eng@2024-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.